The UFCW represents employees at the Palace Casino at West Edmonton Mall. The employees engaged in a lawful strike that lasted some 305 days and, in the course of the labour disruption, the Union video recorded and photographed individuals crossing its picket line. The Union posted signs in the area of the picketing stating that images of persons crossing the picketline might be placed on a website called www.casinoscabs.ca.

Several individuals whose images were captured complained to the Information and Privacy Commissioner of Alberta that the Union’s activities contravened the Personal Information Protection Act, S.A. 2003, c. P-6.5 (“PIPA”). The Court noted:

The Vice-President of the Casino complained that he was photographed or video-taped and that two pictures of him were used on a poster displayed at the picketline with the text: “This is [x’s] Police Mugshot.” Images of his head were also used in union newsletters and strike leaflets with captions intended to be humorous. Another complainant, a member of the public, testified that cameras were trained on the entrance to the Casino where he would regularly meet friends. A third complainant testified that she had been photographed and video-taped while working near the Casino entrance. No recordings of the complainants were placed on the website.

The Union argued that the PIPA was unconstitutional and, specifically, contrary to section 2(b) (freedom of expression) of the Canadian Charter of Rights and Freedoms and, as such, was of no force or effect in the circumstances. Unfortunately, the Adjudicator did not have jurisdiction to consider the constitutionality of the legislation.

That said, the Adjudicator did conclude that “the Union’s collection, use and disclosure of private information was for an expressive purpose” and that“one of the primary purposes of the Union’s information collection was to dissuade people from crossing the picket line”.

Notwithstanding these conclusions, the Union was ordered to stop collecting the personal information for any purposes other than a possible investigation or legal proceeding and to destroy any personal information it had in its possession that had been obtained in contravention of the Act.

The Union sought judicial review of the Order and the Chambers Judge held that “PIPA, as interpreted by the Adjudicator, directly limited the Union’s freedom of expression by preventing the Union from collecting, using, and disclosing personal information obtained about individuals while they were in public view.”

The matter was appealed to the Court of Appeal who held that PIPA was “overbroad”. The Supreme Court of Canada put the findings as follows:

The privacy interest at stake was minor since the complainants were in a public place, crossing a picket line, and had notice that images were being collected. On the other side of the balance was the right of workers to engage in collective bargaining and of the Union to communicate with the public.

The Court of Appeal agreed with the Chambers Judge that PIPA violated section 2(b) of the Charter.

The Supreme Court of Canada

The Court dismissed the appeal and found PIPA to be unconstitutional and an unreasonable restriction on the Union’s freedom of expression which contravened the Charter.

In doing so, the Court recognized that “the collection, use and disclosure of personal information by the Union in the context of picketing during a lawful strike is inherently expressive.” In other words:

Recording conduct related to picketing and, in particular, recording a lawful picketline and any individuals who crossed it, is expressive activity: its purpose was to persuade individuals to support the Union. So too is recording and potentially using or distributing recordings of persons crossing the picketline for deterring people from crossing the picketline and informing the public about the strike.

The Court, after analyzing the legislation in some detail, concluded, without any difficulty, that PIPA restricted freedom of expression.

As is required in Charter cases, the Court then conducted a section 1 analysis. According to the Court:

At this stage, we must determine whether PIPA serves a pressing and substantial objective and, if so, whether its provisions are rationally connected to that objective, whether it impairs the right to freedom of expression no more than is necessary, and whether its effects are proportionate to the government’s objective.

The Court found, again without much difficulty, that PIPA has a pressing and substantial objective, namely, providing an individual with some measure of control over his or her personal information (the Court characterized this as a quasi-constitutional interest “because of the fundamental role privacy plays in the preservation of a free and democratic society"). It went further and stated that, in modern society “where new technologies give organizations an almost unlimited capacity to collect personal information, analyze it, use it and communicate it to others for their own purposes”.

PIPA is rationally connected to this important objective but, in the Court’s view, went too far and were disproportionate to the benefits the legislation sought to promote. The Court observed:

PIPA does not provide any way to accommodate the expressive purposes of unions engaged in lawful strikes. Indeed, the Act does not include any mechanisms by which a union’s constitutional right to freedom of expression may be balanced with the interests protected by the legislation. As counsel for the Commissioner conceded during oral submissions, PIPA contains a general prohibition of the Union’s use of personal information (absent consent or deemed consent) to further its collective bargaining objectives. As a result, PIPA deems virtually all personal information to be protected regardless of context.

In the context of this particular case,

The personal information was collected by the Union at an open political demonstration where it was readily and publicly observable. Those crossing the picketline would reasonably expect that their image could be caught and disseminated by others such as journalists, for example. Moreover, the personal information collected, used and disclosed by the Union was limited to images of individuals crossing a picketline and did not include intimate biographical details. No intimate details of the lifestyle or personal choices of the individuals were revealed.

PIPA is, somewhat of a blunt instrument where it prohibits the collection, use, or disclosure of personal information for many legitimate, expressive purposes related to labour relations.

The Court commented in direct terms:

Free expression in the labour context can also play a significant role in redressing or alleviating the presumptive imbalance between the employer’s economic power and the relative vulnerability of the individual worker: Pepsi, at para. 34. It is through their expressive activities that unions are able to articulate and promote their common interests, and, in the event of a labour dispute, to attempt to persuade the employer.

As this Court found in Pepsi, the free flow of expression by unions and their members during a labour dispute plays an important role in bringing issues relating to labour conditions into the public arena for discussion and debate”

The Court relied upon some cases that have held that peaceful picketing is the expressive element of of legal strike, and protected under the Charter.

Insofar as PIPA restricts a union’s ability to collect, use or disclose personal information during the course of a lawful strike, it is a violation of section 2(b) of the Charter and is not saved by section 1. That said, the Court suspended the declaration of invalidity of PIPA for a period of 12 months to give the legislature time to decide how best to make the legislation constitutional.

Significance

The Supreme Court of Canada has continued its trend of enlarging the scope of Charter protection afforded to Union’s engaged in lawful activities (in this case, a strike), even when these conflict with other societal values (privacy). While acknowledging the important objectives of PIPA. the Court concluded the restrictions went too far (they were disproportionate in the circumstances of this case to the legislation’s objectives).

December 30, 2010

"When a government employee uses his workplace email address to send and receive personal emails completely unrelated to his work, are those emails subject to disclosure to members of the public who request them under freedom of information legislation?" That was the question that the Divisional Court recently addressed in City of Ottawa v. Ontario.

The Court held that:

In my view, it is not reasonable for emails belonging to a private individual to be subject to access by members of the public merely because they are sent or received on a government owned email server. That is not a sensible or logical result whether as a question of fact or a question of law. The implications for the many thousands of employees who work in government offices across this country are staggering.

May 26, 2010

Have a read of David Fraser's post on his always excellent Canadian Privacy Law Blog. For employers falling under PIPEDA, have a read of David's comments under "Employee Personal Information" and the "breach notification" proposals.

May 16, 2009

An interesting post over at Workplace Privacy Counsel about the ethical obligation of counsel where a witness maintains a social networking site such as Facebook where they have limited access to "friends". According to the post:

An attorney who is not on the user’s “friends list,” in theory, could
effectively circumvent the user’s gatekeeping by asking a third party
to send a friend request to the user. Many social networking users are
not particularly selective when it comes to making “friends.”

The way in which you proceed to gain access to the information on a Facebook or other social networking site could raise issues. It's an interesting discussion without doubt particularly in light of recent case law dealing with the disclosure of an individuals social networking activities in the context of litigation.

There's a more recent endorsement of Master Haberman on April 14, 2009 about whether a plaintiff should deliver a Supplementary Affidavit of Documents including relevant Facebook production. The motion was brought less than a month before trial and the motion was dismissed in the circumstances.

May 13, 2009

Does an employee have a reasonable expectation of privacy in data stored on the work computer? I recently touched on this in a presentation at the Osgoode Professional Development seminar Employment Law 2009 Proactively Managing Legal Risk in Challenging Times Employment Law where I spoke about Effectively Managing the Use of Technology and Company Property.

"In increasingly common open-plan offices, the violation of employees' privacy can often become an issue, as third parties overhear their conversations intentionally or unintentionally," the inventors say in their patent.

Their aim is to relieve people of that concern.
Instead of plastic domes, they use a sensor network to work out where potential eavesdroppers are, and speakers to generate a subtle masking sound at just the right level.

April 14, 2009

However, according to a Globe and Mail article effective immediately, "baggage handlers, caterers and other airport workers will not merely
undergo standard criminal background checks through CPIC, the Canadian
Police Information Centre, they will face scrutiny under much more
obscure databanks, with names like PROS, ACIIS, and SPROS."

The sweeping scope of the checks means that people who want to work
inside secure areas at Canadian airports will be scrutinized for
everything from past traffic accidents to links to criminal and
terrorist groups. Police can run searches for any warrants outstanding
in any of the 187 member countries that form Interpol.

The decision is, of course, fraught with employment and privacy questions.

January 13, 2009

There is an interesting and ongoing debate about whether employees, in Ontario,
have a "right to privacy" at common law. In a recent decision, the arbitrator considered whether an employer was entitled to institute a biometric clock and, ultimately dismissed the grievance. The arbitrator made the following obiter comment (as the case was decided on another basis):

In my view, the
question here is not whether employees in unionized workplaces have privacy
rights. Clearly, they have some privacy rights, although those rights are not
absolute. It is hard to believe anyone would argue otherwise.

I'm not entirely certain what "argue otherwise" refers to. Is it that there is a right to privacy? or that it is not absolute? In either case, it assumes the existence of a right and this is something that has been hotly debated in almost every case where surreptitious surveillance is resorted to and the employer attempts to tender that evidence at arbitration. The Union objects, relies upon those cases coming out of BC (where there is a statutory privacy right) and transplanted into Ontario where the test for admissibility is "reasonableness". The employer argues that there's no legitimate basis for subjecting the admissibility of video surveillance evidence to a different test than the "usual" test of "relevance". This latter approach argues that there is no right of privacy that needs to be balanced against the employers right to manage the business.

So, whether a right to privacy exists is argued "otherwise" in that context at least, sometimes successfully (see this post and the line of cases where arbitrators and others have questioned the existence of this right to privacy). The context (biometric clocks and admissibility of surreptitious surveillance evidence may be different and require a different focus, though the discuss of "right" seems equally applicable to both). It's an interesting topic (to me at least).

August 18, 2008

Robert Fulford over at the National Post has written an article called the private lives of exhibitionists in which he lays out his take on the privacy culture in which we live. He leads off with:

"We live in the most privacy-obsessed era in history. Yet our belief in
the secrecy of private information exists alongside a frenzy of
flagrant exhibitionism."

He takes issue with the extent to which employers (and others) are required to go in safeguarding individual privacy. He notes, and provides legal backup, to the notion that “Requiring candidates to provide details about the years they attended
school or the name of the school itself could reveal the candidate’s
age, religious affiliation and place of origin.” The Ontario Human Rights Commission issued a policy many years ago on hiring and proper questions in interviews and job applications. These policies lack the force of law but are instructive.

Is an employer prohibited from asking for the years that a candidate attended school or the name of the school itself? Probably not, however, where the employer asks for the information (directly or indirectly) and the candidate does not get the job or an interview, the employer may face a human rights complaint and will not be in a position to say "how could I have made my decision on a prohibited ground of discrimination, I didn't even know".

In other words, once the question is asked and information supplied by the job applicant, the decision may become tainted and the employer will have to come up with a credible explanation for its actions and that the information did not form any part of its decision.

The June 2008 IDEA Fitness Journal discusses a study in the Canadian Journal of Adminstrative Sciences (2007; 24 [1], 30-34) and recommends that interviewers "maintain uniformity in questioning, note-taking and use of a job description based on job analysis" and that these conform to the Canadian Human Rights Tribunals structures.

While these uniform types of interviews are "safe" the criticism is that they are unduly rigid and don't allow a proper assessment of the candidate.

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